Many people will have seen the recent episode of the popular Sunday night drama, “Call the Midwife”, which featured a touching story about the relationship between Sally, a young woman with Down’s Syndrome, and Jacob, a young man with cerebral palsy. Sally had become pregnant, and the couple wished to marry, but both the pregnancy and their desire to marry were dismissed by their families and carers without any assessment made of their ability to make that decision.
Call the Midwife is set in the 1950s and no doubt is representative of views at the time. Sally and Jacob’s carers decided what was in their best interests with no attempt to consider whether the couple might, in fact, have capacity to make decisions as to their future.
The position now
Had this happened now, the Mental Capacity Act 2005 (MCA) would decide how the question of capacity should be approached.
The first section of the MCA states that a person should be presumed to have capacity unless it is established that he lacks capacity, putting the onus of proof clearly on the person alleging incapacity.
The Act also makes it clear that a person is not to be treated as unable to make a decision merely because he makes an unwise decision. In a case heard in 2012, the judge acknowledged: “it may be necessary from time to time to leave open to the (patient) the option of making an unwise decision”.
The MCA goes on to state that a person is only to be taken as being unable to make a decision when all practical steps to help him to do so have been taken without success. Ways in which a person can be helped to make a decision include providing information and explanations, communicating in the most appropriate way and choosing the best location and time of day.
The test of capacity
The test of capacity to make a decision will vary according to the decision to be made, and an individual may found to be capable of taking one decision, but not another.
For example, a person may have capacity to decide which of several activities to undertake on a particular day but not have capacity to decide where they should live. There are a number of Court of Protection cases where someone is deemed to have capacity for one act, such as with whom to have contact, but not for another, such as where to live and receive care.
Sally and Jacob today
Today, the starting point would be that Sally and Jacob would be deemed to have capacity to decide to marry. If the capacity of either one of them, or both, was challenged, recent cases set out clear guidance as to how the question should be approached. This guidance says:
- to have capacity to marry a person has to understand the marriage contract. This requires understanding the duties and responsibilities that attach to marriage.It is not enough that someone appreciates that they are taking part in a marriage ceremony and understands its words; they must also understand the nature of the contract that they are entering into.
But it can be easy to show this understanding as the marriage contract is quite a simple contract. The courts have deliberately set the test for this very low as it is recognised that “There are many people in society who may be of limited…capacity but whose lives are immensely enriched by marriage.”.
- If a person understands the nature of the marriage contract, the court will not consider whether it is in their best interests to marry. If Sally has capacity to marry then it is up to Sally to decide whether she marries Jacob or someone else and no-one else can interfere with that decision, even if others consider it to be inadvisable or unwise.
A happier ending?
The episode ended with Jacob being sent away to live in another residential home, away from Sally, after their baby is still-born. Given the more sophisticated approach to such matters today, it is possible that the couple’s story would have a happier ending with a positive assessment of their ability to choose to spend their lives together and ongoing support to enable their wish to be achieved.
If you would like to know more about this topic, we are holding free seminars in early March in Bristol and Southampton on Adults, Incapacity and their Personal Lives. Please visit our events page for more details.
To read about the capacity to marry in more detail, please visit our Elderly Care and Court of Protection blog.